Another federal judge ruled last week that ObamaCare is constitutional, and Democrats are saying this makes the score 3-2 for their side. We disagree with the decision, but it's worth noting the judge's reasoning because it so neatly illustrates the constitutional stakes.

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Associated Press

U.S. District Judge Gladys Kessler.The crux of these cases is whether the government's power to regulate "Commerce . . . among the several States" is so broad that it can mandate that everyone buy health insurance. Judge Gladys Kessler of the D.C. district court says in her 64-page opinion that this power includes regulating even "mental activity, i.e., decision-making."

The distinction between activity and inactivity is "of little significance," Judge Kessler writes. "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting' . . . Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin."

Whoa. In other words, there is no constitutional principle that limits federal coercion. Any decision that doesn't conform to what the government thinks you should do is an economic decision and therefore everything is subject to regulation. Though she may not have intended it, Judge Kessler has shown that the real debate is between a government of limited and enumerated powers as understood by the Founders, and a government whose reach includes "mental activity."

Crafty (and others) I think will recognize the author of this piece published today at the American Thinker. (I see other writings by Fay at: http://simplyfayth.blogspot.com/) Fay is pointing out correctly I think that this President does not respect the judiciary as a co-equal branch. It remains to be seen whether the Obama administration would continue to implement 'Obama Care' if the Supreme Court strikes it down.

It is quite a contradiction to me that DOMA Defense of Marriage Act signed by a previous President is not binding on this administration, but healthcare should be binding on this congress because it was passed by a previous congress.

March 01, 2011Courting DisasterBy Fay VoshellThere is a malodorous wind wafting its way from the White House. It bodes ill for the fate of the US judiciary and the Republic of these United States.

The whiff of gunfire was obvious when President Obama publically dressed down the Justices of the Supreme Court during his State of the Union address, saying to his captive audience, "With all due deference to separation of powers, last week the supreme court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations-to spend without limit in our elections...I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems."

The fight between Obama and the courts was on. Much more was to follow.

This would not be the first time an American president found himself at odds with the judiciary, including the Supreme Court. In fact, the august Supreme Court may be in jeopardy in a way it has not been since Franklin Roosevelt, whom Obama deeply admires and seeks to imitate, tried to pack the court in 1937.

At that time, angered over its decisions vitiating his favorite programs, FDR threatened to completely remake the Court's image and its constitutional mandate in order it become more amenable to his legislative agenda. The President's fireside chat on the subject left no doubt in his listeners mind he was impatient with the judiciary.

He said, "Last Thursday I described the American form of government as a three-horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government - the Congress, the executive, and the courts. Two of the horses, the Congress and the executive, are pulling in unison today; the third is not."

The howls of rage that met his attempt to get the "third horse" in tandem with the other two branches of government eventually forced FDR to back down.

A similar assault on the judiciary would wait until another day.

That day has come.

Obama has already indicated his hostility toward court decisions he doesn't like, but more than verbal hostility has transpired since Obama's State of the Union speech, which found an obviously roiled Judge Alito mouthing responses to the president's antagonistic and historically unprecedented dress down of the high court.

Indications are the high court, along with the entirety of the judicial branch of government, may be facing more than a verbal showdown as the Obama administration is determined by any and every means to salvage its end goals, particularly its health care plan, from the counterattacks of the judiciary.

As the whole world knows, recently Justice Roger Vinson of the U.S. District Court in Pensacola ruled the individual mandate central to the implementation of Obama Care is illegal. If Justice Vinson's ruling stands, it would make the 2,700 page, $938 billion health reform bill null and void.

Vinson wrote:

"Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications."

Vinson's ruling, along with one which was delivered by Judge Henry Hudson in Virginia, means it is probable that the U.S. Supreme Court will make the final decision about the constitutionality of ObamaCare. So far the auguries do not bode well for its fate.

Regardless, it has been noticeable that the Obama administration has paid no particular mind to the Vinson decision. On the contrary, the WH has ignored the ruling, proceeding as if it never happened, hell bent on continuing the implementation of Obama Care. As Mark Levin and others have noted, the president is in contempt of court by continuing to implement a law declared unconstitutional. In fact, while the rest of the real estate market languishes, the boom in Washington, D.C. continues unabated, due in a large part to the need for office space for the multitudinous agencies, some 159 in number, mandated by the health care bill.

It's worth noting the disregard for judicial rulings concerning the Health Care bill has been paralleled by the Obama administration's quiet ignoring of the judicial decisions overturning the moratoriums on drilling for oil.

But perhaps the most ominous sign the judicial branch of our government may be in danger of being entirely overridden by the executive branch of our government is the recent decision by the Department of Justice not to defend the Defense of Marriage Act on the grounds that part of the act is unconstitutional.

In one fell swoop, the Obama administration has abrogated to itself the role of the judiciary and has thereby announced to the judiciary the executive branch will decide whether or not to uphold the decisions of the courts, including the Supreme Court.

The Obama administration has basically executed a coup against the judiciary and due process of law by taking to itself the duties of the executive, legislative and judicial branches of government. For if the administration can decree a given law as unconstitutional without the evaluation of its constitutionality or non-constitutionality residing in the hands of the judiciary, the process of judicial review is unnecessary. Worse, the entire system of governmental checks and balances is completely wrecked. The executive branch would reign as supreme arbiter of law. Law would be what the executive branch deems law: law by decree, by fiat.

Further, the administration's refusal to defend an established law which has not yet been decreed unconstitutional by the courts means it may also refuse to obey the courts when and if it upholds Judge Vinson's decision, declaring Obama Care unconstitutional. It is not hard to see an administration which has declared one law unconstitutional; regardless of the fact the courts have not ruled it to be so, declaring the Health Care bill as constitutional regardless of what the Supreme Court rules.

And that may be the end game. Declaring the Defense of Marriage Act unconstitutional and refusing to defend it may well be the presage for further defiance of the courts, as the Obama administration is determined not to allow its crowning achievement to be gutted by anyone or any entity, including the Supreme Court.

We have seen the Obama administration's defiance of the courts from the inception of his administration. From day one the president has ignored or openly opposed the restraints of the judiciary.

The ultimate battle will be enjoined should the Supreme Court declare Obama Care unconstitutional. When and if the administration chooses to defy the ruling of our most august judicial body, FDR's attempt to pack the court will seem a picayune maneuver compared to what will be an all out assault on the Republic, an assault which could conceivably send it to the graveyard of history.

This article seems to be a non-starter for me. Here are some reasons: 1, there is no real reason for the Obama administration to end the implementation of "Obamacare" based on the decision of a district court. If you disagree, and that is fine, please recall that the Bush administration did not alter the course of the war on terror when district courts made constitutional decisions about issues such as prisoners' rights. 2, any auther who writes as though the Supreme Court/judicial branch has a monopoly on constitutional interpretation is either pretending or is ignorant. The executive branch interprets the Constitution all the time (see, for example, "Office of Legal Counsel"). (Side note: additional proof of the auther not being the most informed court watcher comes early in the article when referring to "Justice" Vinson.) 3, it never ceases to amaze me when conservatives decry the role that the Supreme Court plays in the constitutional schema in one breath, and then, when convenient, want to uphold the rule of law (or however it is worded) when the Court (or a court) decides a case in a manner that they like. You can't have it both ways. 4, the elected branches often ignore decisions handed down by the judiciary. (Google INS v. Chandha legislative veto).

WASHINGTON – The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.

The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.

Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.

Matthew Snyder died in Iraq in 2006 and his body was returned to the United States for burial. Members of the Westboro Baptist Church, who have picketed military funerals for several years, decided to protest outside the Westminster, Md., church where his funeral was to be held.

The Rev. Fred Phelps and his family members who make up most of the Westboro Baptist Church have picketed many military funerals in their quest to draw attention to their incendiary view that U.S. deaths in Afghanistan and Iraq are God's punishment for the nation's tolerance of homosexuality.

They showed up with their usual signs, including "Thank God for dead soldiers," "You're Going to Hell," "God Hates the USA/Thank God for 9/11," and one that combined the U.S. Marine Corps motto, Semper Fi, with a slur against gay men.

The church members drew counter-demonstrators, as well as media coverage and a heavy police presence to maintain order. The result was a spectacle that led to altering the route of the funeral procession.

Several weeks later, Albert Snyder was surfing the Internet for tributes to his son from other soldiers and strangers when he came upon a poem on the church's website that attacked Matthew's parents for the way they brought up their son.

Soon after, Snyder filed a lawsuit accusing the Phelpses of intentionally inflicting emotional distress. He won $11 million at trial, later reduced by a judge to $5 million.

The federal appeals court in Richmond, Va., threw out the verdict and said the Constitution shielded the church members from liability.

Forty-eight states, 42 U.S. senators and veterans groups sided with Snyder, asking the court to shield funerals from the Phelps family's "psychological terrorism."

While distancing themselves from the church's message, media organizations, including The Associated Press, urged the court to side with the Phelps family because of concerns that a victory for Snyder could erode speech rights.

Roberts described the court's holding as narrow, and in a separate opinion, Justice Stephen Breyer suggested in other circumstances, governments would not be "powerless to provide private individuals with necessary protection."

But in this case, Breyer said, it would be wrong to "punish Westboro for seeking to communicate its views on matters of public concern."

Margie Phelps, a daughter of the minister and a lawyer who argued the case at the Supreme Court, said she expected the outcome. "The only surprise is that Justice Alito did not feel compelled to follow his oath," Phelps said. "We read the law. We follow the law. The only way for a different ruling is to shred the First Amendment."

She also offered her church's view of the decision. "I think it's pretty self-explanatory, but here's the core point: The wrath of God is pouring onto this land. Rather than trying to shut us up, use your platforms to tell this nation to mourn for your sins."

Bigdog makes good points in rebuttal of Fay's piece. Perhaps I should have posted this as political criticism of the President rather than here in issues of constitutional law. The article I thought introduced questions in both areas.

The constitutional questions regarding the Defense of Marriage Act have not changed since the campaign of 2007-2008. Obama knew full well how he felt about it then (unless he was 'pretending or ignorant' ). He gave a political wink to one side, told the rest of us a lie about his position, then proceeded with the playbook of revealing his real views incrementally. Contention between these two branches is normal and intended; his view just doesn't happen to be the one he told us to get the job. He also strongly opposed and ridiculed the individual mandate, lying directly into the camera in a Nov 2007 debate I remember watching with a room full of largely independent voters. He made similar points then to those in Judge Vincent's decision. (Fay correctly refers to him as Judge Vincent later in the article.) Obama believed (IMO) that if he had told the truth then about his views he wouldn't be President now, pushing this question as slowly as he can through the judicial process.

Your point 3 (hypocrisy) has definite validity and DOMA is a pretty good example. The criticism works just as well aimed at the other end of the political spectrum. Privacy unenumerated is gospel when killing the unborn, but meaningless for other personal choices like two centuries of pay as you go healthcare.

Point 4 "the elected branches often ignore decisions handed down by the judiciary" - isn't that the central thesis of Fay's piece, a warning to readers that this President may press on with Obamacare even if struck down by the Supreme Court. I don't agree with her on that but we may find out soon enough.

From DougMacG: "Your point 3 (hypocrisy) has definite validity and DOMA is a pretty good example. The criticism works just as well aimed at the other end of the political spectrum. Privacy unenumerated is gospel when killing the unborn, but meaningless for other personal choices like two centuries of pay as you go healthcare."

Yes, yes. And I thought I had made a similar point with free speech when I replied this morning. I did not. My apologies for the oversight.

"Point 4 'the elected branches often ignore decisions handed down by the judiciary' - isn't that the central thesis of Fay's piece, a warning to readers that this President may press on with Obamacare even if struck down by the Supreme Court. I don't agree with her on that but we may find out soon enough."

No. The point of the article is that Obama is somehow single handedly causing the largest constitutional crisis since FDR's court packing scheme, or words to that general effect. My point is that the hypothetical reaction by Obama does not portend a crisis, because presidents consistently ignore Supreme Court rulings, and have for years. There is nothing about THIS policy or president's reaction that should constitute a crisis.

Now, if the article was talking about the gradual erosion of the separated powers, or some similar thesis, then there might be a worthy discussion.

We joke about famous people reading the forum but apparently no Justices were moved by the armchair dissent I posted regarding Rev. Phelps. Justice Alito's dissent is interesting and worth reading IMO:

His concern was the intentional infliction of emotional distress (or IIED) onto the plaintiff which I find persuasive. Rights end where they start to harm others IMO. My point previously was that the point of these demonstrations is to recruit and incite more killings, in this case the celebration of killing Catholics and military personnel, but that was not the standing of Snyder or the issue in this case.

I would hope that if 8 Justices can protect speech this vile, harmful, they could also get a little stronger and stricter at interpreting the rest of the constitution as a restraining order against big and intrusive government that I believe it was intended to be. ----

Alito's powerful conclusion:

"Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent. "

Maybe Prof Big Dog will comment?=========One rough measure of how any Supreme Court term is going is to track the decibel level of Justice Antonin Scalia’s dissenting opinions. In a case last week, the question was whether statements made to the police by a shooting victim as he lay bleeding to death in the parking lot of a Detroit gas station were properly used at trial to obtain a murder conviction of the man he named as the gunman.

The court’s answer, by a vote of 6 to 2, was yes. Writing for the majority in the case, Michigan v. Bryant, Justice Sonia Sotomayor explained that what was all-important was the context in which the police-victim interaction occurred. Rather than trying to obtain a dying man’s testimony for later use in a courtroom, she said, the police were urgently investigating what they believed to be an “ongoing emergency,” someone with a gun on the loose on the streets of Detroit. Under that view of the facts, the victim’s statements were not “testimonial,” meaning that their use at trial did not violate the defendant’s right under the Sixth Amendment to “confront” an accuser who was unavailable for cross-examination.

That conclusion enraged Justice Scalia. Of course the police officers knew they were gathering evidence for potential use at trial, he objected, and to maintain otherwise was “so transparently false that professing to believe it demeans this institution.” With this decision, the Supreme Court “makes itself the obfuscator of last resort,” he complained. A “gross distortion of the facts,” “utter nonsense,” and “unprincipled” were a few of the other zingers the dyspeptic justice aimed at Justice Sotomayor’s opinion.

Granted, Justice Scalia has long been the court’s leading champion of a categorical view of the Sixth Amendment confrontation clause, one that admits of only the narrowest of exceptions to a defendant’s right to face his accuser. And no less than any other member of the court, Justice Scalia doesn’t like to lose. (The other dissenter, Justice Ruth Bader Ginsburg, notably did not join Justice Scalia’s opinion, instead filing a bland two-paragraph one of her own. Justice Elena Kagan did not participate.) But what strategic sense could lead a justice to administer such a public thrashing to a junior colleague?

Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little.

.I was reminded of how, in a crucial abortion case years ago, Justice Scalia lashed out at Justice Sandra Day O’Connor for refusing to provide a fifth vote for an outcome that would have left Roe v. Wade a hollow shell. It was the Webster case in 1989. Justice Scalia was then only in his third term on the court. Justice O’Connor, the court’s only female member, had written critically of Roe v. Wade in earlier opinions. But she found this case an inappropriate vehicle for overturning the decision. When the right case came along, she said pointedly, “there will be time enough to re-examine Roe. And to do so carefully.”

With the result he desired having slipped from his grasp, a furious Justice Scalia wrote in a separate opinion that Justice O’Connor’s position was “irrational” and “cannot be taken seriously.” Would he have aimed those particular put-downs at a male colleague? Maybe. As the ensuing years have demonstrated, male colleagues, including Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not escaped Justice Scalia’s barbs. He recently described a majority opinion by Justice Alito as incoherent and as displaying such sleight of hand as to be worthy of Alfred Hitchcock. But in the innocence of 1989, the insults he delivered to Justice O’Connor appeared shocking.

They also proved wildly inefficacious. Just three years later, in Planned Parenthood v. Casey, Justice O’Connor did “carefully” consider whether to retain the constitutional right to abortion and voted with four other justices to do so.

In fact, I can’t think of an example of one of Justice Scalia’s bomb-throwing opinions ever enticing a wavering colleague to come over to his corner. Certainly his angry prediction in a dissenting opinion three years ago that granting habeas corpus rights to the Guantánamo detainees “will almost certainly cause more Americans to be killed” did not lead Justice Anthony M. Kennedy, author of the majority opinion in that case, Boumediene v. Bush, to switch sides. Publishing such an inflammatory statement once it was clear that it would not shake the majority loose was an exercise in self-indulgence that could serve only to undermine the court’s own legitimacy.

So the question raised by Justice Scalia’s most recent intemperate display remains: what does this smart, rhetorically gifted man think his bullying accomplishes?

It’s a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity.

The area of property rights is a prime example. A 1992 Scalia opinion, Lucas v. South Carolina Coastal Council, had raised the prospect that even temporary restrictions on a land owner’s right to develop property can amount to a “taking” for which the owner is entitled to compensation, as if the government had physically seized possession of the property. But within a decade, the court was backing away from this unsettling position, treating the Lucas decision as an exception rather than a rule.

Justice Scalia did have a moment of triumph with his majority opinion three years ago in District of Columbia v. Heller, interpreting the Second Amendment to convey an individual right to own a gun, at least for a law-abiding person, in the home, for self-defense. Because so few jurisdictions have stringent gun-control laws of the sort that the ruling invalidated, it remains to be seen whether the Heller decision will have much practical impact. Just last week, the federal appeals court in Philadelphia rejected a Heller-based constitutional challenge to the federal prohibition on gun use by convicted felons.

Justice Scalia’s real shining moment had come four years earlier, on the subject of the Sixth Amendment’s confrontation clause. His opinion in Crawford v. Washington ushered in a revolution in criminal procedure. While under the Supreme Court’s prior approach, statements by unavailable witnesses could be admitted at trial if a judge deemed the statements sufficiently “reliable,” the Crawford decision established a contrary bright-line rule: confrontation means confrontation. If a statement was “testimonial” in character and the witness could not appear in court, the statement stayed out unless the defendant had an earlier opportunity for cross-examination. Speaking for seven justices, Justice Scalia said that this was the only interpretation of the confrontation clause that was true to the original understanding of the Constitution’s framers.

The Crawford opinion left open the crucial question of what kinds of statements were “testimonial.” A series of decisions drawing various distinctions followed. Two years ago, to the consternation of prosecutors around the country, another Scalia opinion held that the affidavits of crime laboratory technicians, attesting to a substance’s identity as an illegal drug, were testimonial, inadmissible unless the individual analyst appeared at trial or had previously been available for cross-examination. “This case involves little more than the application of our holding in Crawford v. Washington,” Justice Scalia wrote in this case, Melendez-Diaz v. Massachusetts. Not all his colleagues were persuaded. His margin shrank to 5 to 4, with Chief Justice Roberts and Justices Alito, Kennedy and Stephen G. Breyer in dissent.

Like Justice Alito, Justice Sotomayor is a former prosecutor. She replaced Justice David H. Souter, a reliable member of the Scalia majority in these cases. A new case, argued last week, gives the court an opportunity to revisit the Melendez-Diaz precedent if a new majority is so inclined. The question in the new case, Bullcoming v. New Mexico, is whether for confrontation clause purposes a laboratory supervisor who did not actually perform the analysis is an acceptable substitute for the individual technician.

Which brings us to last week’s decision and dissent in Michigan v. Bryant. While Justice Sotomayor’s majority opinion purported to accept Crawford as binding precedent, the opinion is suffused with an attitude of pragmatism. In the originalist cosmos of Antonin Scalia, pragmatism has no place. With the highest achievement of his originalist jurisprudence now in peril, fear as well as anger was palpable in his dissenting opinion as he suggested that the majority was not only wrong but was composed of hypocrites.

“Honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint,” he said, wondering aloud whether the court instead was now embarked on a course that would, through “a thousand unprincipled distinctions,” resurrect the old “reliability” test “without ever explicitly overruling Crawford.”

This Friday, March 11, is Justice Scalia’s 75th birthday. It doesn’t promise to be a happy one.

A dying declaration is an exception to the hearsay rule, which prohibits introducing evidence of out-of-court statements made by unavailable witnesses. The Federal Rules of Evidence have relaxed the common law standards for dying declarations and require the following conditions be met before introducing a dying declaration into evidence:

1. Awareness of imminent death: The declarant must, at the time he made his statement, believe that his death is imminent. 2. Actual death: At common law, the declarant must in fact be dead by the time the evidence is offered. But this is not required under the Federal Rule, although the declarant must be unavailable. 3. Homicide: At common law, the declaration may be used only in a homicide case. Under the Federal Rules, dying declarations are usable in civil suits and homicide cases, but not in non-homicide criminal cases. 4. Declarant is victim: At common law, declaration may be offered only in a trial for the killing of the declarant, not the killing of someone else. The Federal Rules no longer include this requirement. 5. Relating to circumstances of killing: Both at common law and under the Federal Rules, the declaration must relate to the causes or circumstances of the killing. 6. For accused: The statement may be admitted on behalf of the accused (though usually, it is admitted against him.)

I'm not sure what comments to add on the Scalia piece. It seems about right to me. There is a long literature related coalition formation on the Supreme Court (and many other multi-player institutions). Supreme Court specific: perhaps the most famous example of an extremely smart, highly regarded, non-influential justice was Felix Frankfurter. A former law professor, he lacked people skills, and had difficulty convincing others to join him. The most famous counter example was William Brennen. He was able to convince justices to join him, in large part, because he had abilities to compromise in mutually beneficial ways to him and the other justices on a coalition.

I suspect that Scalia will be influential in the long run, though, not unlike Justice Brandeis. Brandeis famously dissented in a case called Olmstead. The dissent went on to form the legal understanding of wiretaps beginning in the 1960's. I suspect that Scalia's dissents, which might be scathing, but are also well written and clear, may have an impact similar to that of Brandeis.

When the Supreme Court considers whether Congress has the constitutional power to compel individuals to buy health insurance, the argument supporting Congress may rest on a non sequitur and a semantic fiat. A judge's recent ruling argues that the insurance mandate must be constitutional because Obamacare would collapse without it. A forthcoming law review article agrees with this and with the judge's idea that, regarding commerce, being inactive is an activity.

Obamacare does indeed require the mandate: Because the law requires insurance companies to sell coverage to people regardless of their preexisting conditions, many people might delay buying insurance until they become sick. But is the fact that the mandate is crucial to the law's functioning dispositive?

U.S. District Judge Gladys Kessler's ruling (http://sblog.s3.amazonaws.com/wp-content/uploads/2011/02/J.-Kessler-on-ACA-2-22-11.pdf) that the mandate is constitutional conflates moral, policy and constitutional considerations. She says that people who choose "not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep." So "those who choose not to purchase health insurance will ultimately get a 'free ride' on the backs of those Americans who have made responsible choices to provide for the illness we all must face."

Her disapproval is neither a legal argument nor pertinent to one. The question remains: Does Congress's power to regulate interstate commerce entitle it to create a health-care regime that requires the mandate?ad_icon

Mark Hall of Wake Forest University, in an article for the University of Pennsylvania Law Review (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747189), says there would be constitutional "uncertainty over the mandate in isolation." But it is "inextricably intertwined" with Obamacare's "other insurance regulations" - e.g., those pertaining to preexisting conditions - "which indisputably are constitutional." So the "strongest defense" of Congress's power to enact the mandate is "the acknowledged undesirability, if not impossibility" of the regulations regarding preexisting conditions, absent the mandate.

Hall says that the mandate "meets a high threshold of necessity to accomplish the overall reform scheme, clearly within congressional power, to create a market structure in which no one is ever again medically uninsurable." But unless we postulate that Congress has whatever power is required to create such a market structure, this question remains: Does the fact that Congress has the constitutional power to do X - say, guarantee universal access to insurance - make Y constitutional merely because Y is necessary for doing X?

Congress has the constitutional power to combat political corruption, the "appearance" thereof and the "circumvention" of laws for this purpose. But suppose Congress, exercising this power by regulating campaign finances, decides that abridging freedom of speech is necessary for its anti-corruption measures. This necessity, defined by this preference, does not make such abridgement constitutional. The Supreme Court said as much concerning McCain-Feingold.

The mandate's defenders note that the Constitution says Congress has the power to "make all laws which shall be necessary and proper for carrying into execution" its enumerated powers, one of which is to regulate interstate commerce. "Necessary and proper." An unconstitutional law is improper.

Does the mandate acquire derivative constitutionality merely by Congress making the mandate necessary for something Congress wants to do in the exercise of the enumerated power of regulating interstate commerce? If so, what would not acquire such constitutionality?

Madison's constitutional architecture for limited government will be vitiated unless the court places some limits on what constitutes commerce eligible for regulation. So the question becomes: Is the inactivity of not buying insurance a commercial activity Congress can proscribe because it has economic consequences?

Hall says it is unclear what constitutes "pure inaction." But virtually nothing qualifies as "pure" inactivity if, as he says, "the passivity of non-purchasing decisions does not rob them of their inherently economic nature." Judge Kessler disdains the distinction between activity and inactivity as "of little significance." Her Orwellian theory is that government can regulate the activity - the mental activity - of choosing not to participate in a commercial activity.

Hall perfunctorily says that "some limit" on Congress's commerce power "is necessary" but then says "democratic electoral constraint" - trusting "the political process itself to set limits" - will suffice to restrain government.

The question about the mandate is, however, whether a political institution has traduced constitutional limits placed on it. Because the Framers prudently doubted the sufficiency of "democratic electoral constraint" - because they were wary about "the political process" policing itself - the Constitution was written.

Written from the progressive POV (well, its POTH so no surprise there) this piece analyzes the law from the POV of the nature of the parties more than the legal questions presented, but at least it has the honesty to admit to itself that not all of its prejudices are accurate:

=========Among common impressions of the current Supreme Court are that Justices Antonin Scalia and Clarence Thomas are joined at the hip and that the majority tilts reflexively in favor of corporations and employers.

As the court heads into the current term’s final three months, I looked at the statistics. What I found surprised me:• In decisions that have split the court in any direction, Justices Scalia and Thomas have voted on opposite sides more often than they voted together. They differed in all three of the non-unanimous criminal-law cases that the court has decided so far.

.• Employees suing companies for civil rights violations have won all three cases decided so far, two of them by votes of 8-0 (with Justice Elena Kagan recused).

.• By wide margins, the court has rejected arguments put forward by corporate defendants in several cases. It refused to permit corporations to claim a personal-privacy exemption from disclosure of law-enforcement records under the Freedom of Information Act. It permitted a liability suit to proceed against an automobile manufacturer for not installing the safest kind of back-seat passenger restraint. And in a unanimous opinion on Tuesday, the court refused to throw out a lawsuit by investors alleging that a drug manufacturer’s failure to disclose reports that some patients using its cold remedy had lost their sense of smell amounted to securities fraud.

.What accounts for the topsy-turvy world of the Supreme Court’s 2010-2011 term?

One answer might be that the deviation from expected behavior is just an illusion, based on a small number of decisions that might not prove representative of the term as a whole. The court has decided 25 cases so far, with about twice that many yet to come by the time the term ends in late June. Some of the term’s more important cases, including Wal-Mart’s appeal in a huge class-action sex-discrimination suit, have not yet even been argued.

Still, when the court decides so few cases — 73 last year — 25 decisions count for something. At the very least, this preliminary snapshot reminds those of us (and I include myself) who think they have taken the court’s measure that assumptions are a poor substitute for close observation. So that’s what this column is: a portrait of a term in progress.

When I looked at voting patterns, I was surprised by what the numbers revealed: that in the divided cases, Chief Justice John G. Roberts Jr. has voted more often with Justices Stephen G. Breyer and Sonia Sotomayor than with Justices Thomas, Scalia or Samuel A. Alito Jr. The number of cases is small, only nine, and there was no particular ideological spin to most of the decisions, so this is not to suggest that the term will disprove characterizations of the Roberts court, or the chief justice himself, as conservative.

Even so, it is worth noting that in eight of these nine cases (not all the same eight), the chief justice and Justices Breyer, Sotomayor and/or Anthony M. Kennedy saw things the same way. (Justice Kagan’s previous service as solicitor general has required her to stay out of so many cases — 15 of the 25 decided so far — that I am not using her votes in these calculations.)

Chief Justice Roberts has yet to cast a dissenting vote this term; with the exception of Justice Kagan, every other justice has dissented at least once (probably the most eye-catching dissent so far is Justice Alito’s solitary dissent in Snyder v. Phelps, the 8-to-1 decision according First Amendment protection to the obnoxious funeral-picketing activities of the Westboro Baptist Church). And every justice, including Justice Kagan, has written more than one majority opinion, with one glaring exception: Justice Thomas, who has yet to write for the majority in any case this term.

That’s not to say that Justice Thomas has been silent (except on the bench during oral argument). He has written three dissenting and four concurring opinions. He gave the keynote address last month in Charlottesville, Va., at the annual student symposium of the Federalist Society, a national organization of conservative law students and lawyers. There, he offered a vigorous defense of his wife, Virginia, against criticism of her political activism.

“There is a price to pay today for standing in defense of your Constitution,” he said. Recognizing his wife in the audience, Justice Thomas said that the two of them were “equally yoked,” “believe in the same things” and were “focused on defending liberty.” Their critics, he warned, “seem bent on undermining” the court itself.

Assuming that Justice Thomas has received the same number of opinion-writing assignments as his colleagues — one or two cases from each of the court’s monthly argument sittings — the absence of majority opinions in his name is striking.Granted, once a justice gets an assignment, the timing of the release of the opinion is not completely under his or her control. The need to satisfy a fractious majority can require multiple drafts, or those justices writing dissenting opinions can take their time, perhaps hoping to peel off a fifth vote and change the outcome.

The court’s eventual opinion in a case called Connick v. Thompson, argued back on Oct. 6, may be revealing. It is the only undecided case left from among the 12 the justices heard during the first month of the term, so by deduction, the opinion assignment should have gone to Justice Thomas, the only justice without a majority opinion from that session (Justice Kennedy and Justice Ruth Bader Ginsburg each have two.)

This is not to suggest that the term will disprove characterizations of the Roberts court, or the chief justice himself, as conservative.

.The question in the case is a tricky one: whether a district attorney’s office can be held liable for damages based on a prosecutor’s intentional withholding of evidence that casts doubt on the defendant’s guilt. It’s easy to imagine the court deeply split over a case with disturbing facts (the defendant spent 14 years on death row and came close to being executed before the previously withheld blood evidence came to light) that nonetheless runs up against the court’s extreme reluctance to permit damage suits of this kind, even for egregious official misbehavior. Perhaps Justice Thomas, having received the initial assignment to write the majority opinion, has been unable to hold four other justices to his approach to this case. Or perhaps a dissenting opinion is taking a long time to incubate.

As a case about civil damages, the Connick case does not directly involve criminal law. No one disputes the prosecution’s duty to turn over exculpatory evidence; the question is whether the prosecutor’s office can be held liable for failing to train its staff to observe this very basic requirement. On issues of pure criminal law and procedure, including sentencing, Justices Thomas and Scalia have for some time demonstrated distinctly different points of view. Earlier this month, Justice Scalia joined Justice Sotomayor’s opinion permitting district judges in resentencing proceedings to grant leniency to defendants who have managed to rehabilitate themselves after the initial sentencing. In a solitary dissent, Justice Thomas wrote that he still regarded the federal sentencing guidelines as mandatory, despite the court’s ruling six years ago that rendered the guidelines “advisory.” Justice Thomas expressed sympathy for the defendant in this case, but said the district judge had no discretion to give a lighter sentence than the guidelines provided.

The two justices also diverged on the confrontation clause issue that provoked Justice Scalia’s vigorous dissent last month from another majority opinion by Justice Sotomayor. The question was whether a dying man gave the equivalent of testimony when he told the police the name of the man who shot him; if so, the victim’s statements to the police could not be introduced at trial because cross-examination would not be possible. In a separate opinion, Justice Thomas agreed with the majority that the encounter between the victim and the police was not testimonial. Justice Scalia, whose view of the Sixth Amendment confrontation right is categorical, insisted otherwise.

In all of the last term, Justices Scalia and Thomas were on opposite sides only six times. Already this term, they have split in five cases. An aberration or a trend? Watch and wait.

I am disappointed in Linda Greenhouse here. She knows better than to say some of the things that she wrote in this article. She is almost always spot on, and if anything over-informed. But here, she seems to forget information she used to know.

1. "When I looked at voting patterns, I was surprised by what the numbers revealed: that in the divided cases, Chief Justice John G. Roberts Jr. has voted more often with Justices Stephen G. Breyer and Sonia Sotomayor than with Justices Thomas, Scalia or Samuel A. Alito Jr. The number of cases is small, only nine, and there was no particular ideological spin to most of the decisions, so this is not to suggest that the term will disprove characterizations of the Roberts court, or the chief justice himself, as conservative." This means nothing. While she admits that it might mean nothing, by including it she draws attention to nothing. Here is why: if in the majority at the conference stage (when the justices meet post-oral argument to preliminarily hash out the votes), the CJ will assign the majority opinion. It is entirely possible that Roberts is voting with the "liberal wing" more often simply because he wants to assign the opinion. CJ Burger was known to do this same thing.

2. "Justice Thomas... has yet to write for the majority in any case this term. ... The court’s eventual opinion in a case called Connick v. Thompson, argued back on Oct. 6, may be revealing. It is the only undecided case left from among the 12 the justices heard during the first month of the term, so by deduction, the opinion assignment should have gone to Justice Thomas, the only justice without a majority opinion from that session (Justice Kennedy and Justice Ruth Bader Ginsburg each have two.) " There is NO SUCH THING AS "SHOULD" HAVE ASSIGNED AN OPINION. Here is why: first of all, while balancing the workload is important, the Chief Justice (see above for why) can assign opinions for many reasons. Who writes the fastest, who is closest ideologically, who can support the majority, who is an expert in the area of law being questioned, etc. etc. Moreover, if Justice Thomas did not vote with the majority, he wouldn't be assigned the majority opinion. Greenhouse has no way of knowing if he was in the majority or not, so she can't know that he "should" have been assigned the opinion.

3. "Perhaps Justice Thomas, having received the initial assignment to write the majority opinion, has been unable to hold four other justices to his approach to this case. Or perhaps a dissenting opinion is taking a long time to incubate." While all true reasons why an opinion announcement might be slow in coming, since she can't know that Justice Thomas was assigned the opinion, this is also meaningless.

MARCH 23, 2011D.C. Judge Requests Three Firms' Rates in Legal Fee DisputeA judge in Washington said today he wants the three law firms that provided pro bono service to the District of Columbia in the landmark gun rights case to open up their books to provide billing data to the court.

Judge Emmet Sullivan of Washington's federal trial court is trying to determine a fair and reasonable fee for the plaintiffs’ team that represented a group of District residents, including Dick Heller, in the suit in which the U.S. Supreme Court in 2008 overturned the city’s ban on handguns.

The plaintiffs’ lawyers, led by Alan Gura of Alexandria, Va.’s Gura & Possessky, said a review of the records will undercut the government’s argument that the plaintiffs’ petition for more than $3.1 million in fees is unreasonable.

Sullivan said today in court he’s spent a “great deal” of time reviewing the fee petition and has struggled over assessment of the prevailing market rate for complex civil litigation. Last year, Sullivan denied without prejudice Gura’s request to inspect the records. Sullivan reversed course today, saying the records, while perhaps not dispositive, will aid his work.

Three firms—O’Melveny & Myers, Covington & Burling and Akin Gump Strauss Hauer & Feld—provided pro bono work for the District in the litigation. O’Melveny partner Walter Dellinger III argued for the District in the high court. A fourth firm, Sidley Austin, quickly dropped out before any work was initiated, a District lawyer, Samuel Kaplan, said at today’s hearing.

Sullivan said he wants to avoid “full-blown litigation” over the three firms’ billing records, and he said he’s not interested in having names attached with the financial data. “Anonymity is fine with the court,” Sullivan said. “I do not need initials. I don’t need names.”

The judge also said he is hopeful he will not have to authorize subpoenas to compel Covington, Akin and O’Melveny to provide the standard billing rates for the lawyers who worked on the gun case for the District.

“I hope it doesn’t come to that,” Sullivan said. “But if it does, we’ll cross that bridge when we get there.”

Kaplan cautioned that O’Melveny’s rates vary per client and case and that a “standard rate” for any lawyer on the gun case may not be helpful to Sullivan. The District, Kaplan said, is concerned about what he called the “intrusive” nature of the request for billing rates from the three firms.

Kaplan said the city only accepted help from O’Melveny, Covington and Akin because it was free. Otherwise, he said, the District’s lawyers—he mentioned Todd Kim, the District’s solicitor general, in particular—would have worked on the case in the Supreme Court.

“The city was very fortunate to get outstanding lawyers from outstanding firms,” Sullivan said in court today.

At the end of the hearing, Sullivan asked the lawyers to get him the data in 10 days. Sullivan said he wants to resolve the fee dispute as soon as possible.

If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech

Posted by Ilya Shapiro

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here's the background: In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns. Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional. For more, see Roger Pilon's policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here .

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General's office right into what I consider to be his (Alito's) best majority opinion to date, the federal "millionaire's amendment" case (paraphrasing; here's the transcript ):

Alito: Do you agree that "leveling the playing field" is not a valid rationale for restricting speech?

US: Sort of.

Alito: Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech. Cato’s amicus briefs in this case, which you can read here and here , focused on the similarities to Davis, so I'm keeping my fingers crossed that we'll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members' lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however -- ironic given how pro-free-speech this Court is -- so I will not be repeating the short-lived experiment. (That said, you should still follow me on Twitter -- and also be sure to follow our friends @IJ and @GoldwaterInst!)

Perhaps Big Dog can comment here, but this is an area in Constitutional law where I am not clear in my thinking. The Bill of Rights was written and passed it did not apply to the States and many States (a majority?) did support particular religions without oppressing other religions. With Incoporation this changed, but I am not getting the distress of Kagan and the NY Times editorial board here; the State is not directing the money to a particular religion, the citizen is. What is the problem?

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In the Supreme Court’s 5-to-4 ruling about a school-choice program in Arizona, Justice Anthony Kennedy’s opinion leaves intact a program that has disbursed almost $350 million of state funds, most of it to schools choosing students on the basis of religion.

The holding all but overrules a landmark decision of the Warren court, Flast v. Cohen. As Justice Elena Kagan says powerfully in her first dissent, “by ravaging Flast in this way,” the majority “damages one of this nation’s defining constitutional commitments.”

The First Amendment’s establishment clause — “Congress shall make no law respecting an establishment of religion” — is meant to protect citizens even when they are not harmed. Before, under Flast, a taxpayer could ask a court to enforce this central right. Now, under this ruling, a taxpayer all but can’t, and any government can use the tax system to avoid challenges to financing of religion.

The only difference between cases considered under Flast since 1968 and the current one is the means of government spending. In past cases, it has come through appropriations. In this case, the money comes through a tax credit: any taxpayer can redirect up to $500 of what he or she owes the state to a nonprofit that uses the money for scholarships. What the court calls a tax credit and Arizona calls a voluntary cash contribution is, concretely, a redirected tax payment.

Justice Kennedy, in an opinion clearly intended to overturn legal precedent, says that the program’s financing comes from taxpayers taking advantage of this credit, not from the state, so the taxpayers bringing the lawsuit can claim no harm from the state and lacked standing to sue. To Justice Kagan, “this novel distinction,” has “as little basis in principle as it has in our precedent.” Whether a state finances a program with cash grants or targeted tax breaks, the effect is the same. Taxpayers bear the cost.

Since the Flast case, she writes, “no court — not one — has differentiated between these sources of financing in deciding about standing.” In five cases where taxpayers challenged tax expenditures, the court has dealt with the merits “without questioning the plaintiffs’ standing.” The court has relied on some of these decisions as “exemplars of jurisdiction” in other cases. (“Pause on that for a moment,” the justice entreats.)

When this case was argued last fall, the convolutions of the Arizona program seemed intended to mask its violation of the Constitution. The court’s ruling is another cynical sleight of hand, which will reduce access to federal courts while advancing endorsement of religion.

"Like contributions that lead to charitable tax deductions, contributions yielding STO tax credits are not owed to the State and, in fact, pass directly from taxpayers to private organizations. Respondents’ contrary position assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands. That premise finds no basis in standing jurisprudence."http://www.supremecourt.gov/opinions/10pdf/09-987.pdf

NY Times: "Justice Kennedy, in an opinion clearly intended to overturn legal precedent..."But Scalia wrote exactly that and Kennedy did not sign on with him: "Flast is an anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power that our opinions have established. I would repudiate that misguided decision and enforce the Constitution.

Kagan: In five cases where taxpayers challenged tax expenditures, the court has dealt with the merits “without questioning the plaintiffs’ standing.”

The first sentence from the NY Times makes me wonder if the editorialists all went to Hogwarts; they think school choice means the school chooses the student. "...state funds, most of it to schools choosing students on the basis of religion".

I recall looking up that the despicable Phelps church celebrating fallen soldiers pays zero property taxes, a state/local tax credit of sorts?

On the merits, it seems to me that accreditation should be the question, not the money. If the state accepts the quality of the education, allows choice, and takes the responsibility of paying for K-12, has measured the cost to educate one child for one year separate from religious training, and wants that money to go with the student to the school chosen, where is the problem?

A bit of a stretch to say that a program constitutes establishment if it treats all religions along with no religion at all exactly the same under the law, all are eligible for the exact same benefits of the same program. Sounds more like establishment to me if they required all kids to go to the state school system for a different kind of indoctrination and teach things reprehensible to my religious beliefs.

DougMacG: "I recall looking up that the despicable Phelps church celebrating fallen soldiers pays zero property taxes, a state/local tax credit of sorts?" Churches of all sorts, even the ones you (or I) don't like have tax exempt status. Although I do not agree with the message, or even Christianity of Westboro Baptist, the religious rights of parishioners are imperiled when the state gets to pick and choose between types of "legitimate" religious messages.

Guro: There is a long line of SC case law that relates to funding/choice/aid to religious schools, which, of course, make up many (although not exclusively) private schools. Perhaps this was Kagan's worry. In particular, look to Everson v. Bd. of Ed. (1947); Lemon v. Kurtzman (1971); Agostini v. Felton (1997); and Zelman v. Simmons-Harris (2002) for frames of reference. These are the "biggies." There are many other cases that could add to the discussion.

While serving as Solicitor General, Justice Elena Kagan allegedly began maneuvering to avoid having to recuse in any eventual challenges to the Patient Protection and Affordable Care Act, months before her nomination was announced — indeed, even before she was told she was under consideration — according to a series of documents released in response to a Freedom of Information Act request. The National Law Journal reports on the disclosures here (registration required).

The documents, mainly in the form of printouts of internal email chains, show that now-Acting Solicitor General Neal Katyal – not Kagan herself — was the point person within the office on discussions of the new health care reform law and how to defend it in court. Released to CNSNews.com, a conservative-oriented news outlet, the emails also reveal how Kagan was walled off from discussions of the law — possibly because she already knew she might be nominated to the high court, where a challenge to the statute would ultimately be decided.

The release has raised eyebrows among lawyers familiar with the long tradition of the solicitor general’s office resisting release of internal documents so as not to hamper deliberations on cases. . . .

In a March 15 letter releasing the documents, Valerie Hall, executive officer of the solicitor general’s office, said they could have been withheld under [a FOIA exemption for “inter-agency or intra-agency memorandums or letters”], but the department was releasing them anyway as “a matter of agency discretion.” CNSNews.com published a story on the documents March 29

Another puzzle is that if these documents could be released under FOIA, why were they not disclosed to the Senate Judiciary Committee in preparation for Kagan’s confirmation hearing? Nothing reported to be in the documents would have prevented Kagan’s confirmation, nor does anything seem likely to force her recusal should the health care litigation reach the High Court, so the sudden disclosure is curious.

At NRO’s Bench Memos, Carrie Severino comments further on the disclosed documents here and here.

A Supreme Court justice cannot be forced to recuse him- or herself from a case.

Two examples: Marbury v. Madison and from 2004 from then Chief Justice William Rehnquist:

"While a member of the court will often consult with colleagues as to whether to recuse in a case, there is no formal procedure for court review of a justice in an individual case,” Chief Justice Rehnquist wrote. “This is because it has long been settled that each justice must decide such a question for himself.”

While serving as Solicitor General, Justice Elena Kagan allegedly began maneuvering to avoid having to recuse in any eventual challenges to the Patient Protection and Affordable Care Act, months before her nomination was announced — indeed, even before she was told she was under consideration — according to a series of documents released in response to a Freedom of Information Act request. The National Law Journal reports on the disclosures here (registration required).

The documents, mainly in the form of printouts of internal email chains, show that now-Acting Solicitor General Neal Katyal – not Kagan herself — was the point person within the office on discussions of the new health care reform law and how to defend it in court. Released to CNSNews.com, a conservative-oriented news outlet, the emails also reveal how Kagan was walled off from discussions of the law — possibly because she already knew she might be nominated to the high court, where a challenge to the statute would ultimately be decided.

The release has raised eyebrows among lawyers familiar with the long tradition of the solicitor general’s office resisting release of internal documents so as not to hamper deliberations on cases. . . .

In a March 15 letter releasing the documents, Valerie Hall, executive officer of the solicitor general’s office, said they could have been withheld under [a FOIA exemption for “inter-agency or intra-agency memorandums or letters”], but the department was releasing them anyway as “a matter of agency discretion.” CNSNews.com published a story on the documents March 29

Another puzzle is that if these documents could be released under FOIA, why were they not disclosed to the Senate Judiciary Committee in preparation for Kagan’s confirmation hearing? Nothing reported to be in the documents would have prevented Kagan’s confirmation, nor does anything seem likely to force her recusal should the health care litigation reach the High Court, so the sudden disclosure is curious.

At NRO’s Bench Memos, Carrie Severino comments further on the disclosed documents here and here.

Overcriminalization and the ConstitutionPublished on April 13, 2011 by Brian Walsh and Benjamin Keane LEGAL MEMORANDUM #64

Abstract: Although the Constitution’s great structural principles of federalism and separation of powers are designed to guard against the abuse of governmental power and secure individual liberty, Congress routinely flouts these constitutional safeguards by enacting vague, overly broad, and other improper and unconstitutional criminal laws. Thomas Jefferson warned that “concentrating” or combining the powers of the legislative, executive, and judicial branches of government “in the same hands is precisely the definition of despotic government.” Yet overcriminalization invites and effectively requires prosecutors, judges, and even unelected federal bureaucrats to engage in lawmaking to determine the scope and severity of criminal punishment. In order to preserve the rights of innocent Americans, the unbridled and unprincipled growth of federal criminal statutes and regulations must be contained.

Congress’s “tough on crime” rhetoric has almost routinely resulted in the proliferation of vague, overbroad federal offenses that have only theoretical or highly attenuated connections to the federal government’s constitutional powers. This proliferation is a central feature of the “overcriminalization” phenomenon. It undermines justice and destroys the lives of individual Americans—consequences that are often directly related to lawmakers’ disregard for or circumvention of the language and limitations of the U.S. Constitution.

Overcriminalization in ActionThe overcriminalization phenomenon is well illustrated by the federal prosecution of Wisconsin civil servant Georgia Thompson.[1] Thompson was charged with federal “honest services” fraud after she awarded a state contract for travel services to the bidder with the best price and second-best service rating.[2] Thompson and her team of decision makers had no financial interest in the winning company and no conflict of interest, and federal prosecutors made no allegations to the contrary. Instead, the U.S. Attorney’s office alleged that the contract award technically violated Wisconsin state procurement rules—an argument that by no means supports the exercise of federal jurisdiction.

Unfortunately for Ms. Thompson, the language of the federal “honest services” fraud statute is an egregious example of overcriminalization.[3] It criminalizes vast swaths of conduct unrelated to any constitutional power or interest. Federal prosecutors thus were able to build their theory of Thompson’s guilt on allegations that the contract she granted made her supervisors look good and thus “improved her job security.”[4] A jury convicted Ms. Thompson under this preposterous theory, and a federal judge sentenced her to four years in federal prison.

By the time a federal court of appeals reversed the conviction of this hard-working civil servant with a previously unblemished record, Ms. Thompson had lost her job, career, and reputation; had fallen into bankruptcy; and had spent four months in a federal prison. Indeed, until the U.S. Supreme Court held that the language of the “honest services” statute is unconstitutionally vague and imposed a limiting construction on it,[5] prosecutors with the U.S. Department of Justice had used it for 23 years to prosecute thousands of individuals, many of whose conduct had no real connection either to the federal interest or to powers defined by the Constitution.

Injustices such as those Georgia Thompson suffered are increasingly common in America[6] and, sadly, unsurprising. Express constitutional provisions, as well as the federal–state governmental structure that the Constitution created, are intended to protect liberty.[7] Over the past several decades, however, federal lawmakers have often circumvented or even disregarded these limitations. Lawmakers who are genuinely concerned about preserving America’s remarkable freedoms and safeguarding individuals’ most basic liberties must take stock of the damage that overcriminalization is doing to the nation’s constitutional structure.

Constitutional Powers and FederalismThe unbridled growth of federal criminal law disrupts the basic balance of constitutional government. First and foremost, unprincipled expansion of federal criminal law runs afoul of the fundamental constitutional principle that the federal government is a government of limited and enumerated powers.[8] Likewise, the development of duplicative and overlapping criminal statutes and regulations at the federal level disregards the proper constitutional equilibrium between state and federal powers.

Constitutional PowersIt is a fundamental constitutional tenet that every law enacted by Congress must be based on one or more of the powers specifically enumerated in the Constitution. In McCulloch v. Maryland,[9] Chief Justice John Marshall described this limitation on federal authority in the following manner:

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent…. [T]hat principle is now universally admitted.[10]

Marshall’s statement means that Congress does not have a general federal police power to criminalize conduct.[11] As such, Congress lacks constitutional authority over the vast majority of violent, non-economic activity that, in any event, is routinely governed by state criminal law and state law enforcement.[12] Rather than combating street crime or other purely local matters, federal criminal law should address problems reserved to the national government in the Constitution such as treason, currency counterfeiting, military activities, and specific offenses that require proof of an actual (not theoretical or highly attenuated) nexus with interstate commerce.

Unfortunately, recent congressional approaches to federal criminal law have not abided by such limitations. In most cases, Congress never identifies what legislative power, if any, undergirds its exercise of criminal authority. When Congress does expend the time and effort to cite a constitutional provision to justify criminal-law legislation, it most frequently cites to the Constitution’s Commerce Clause (which grants Congress authority to “regulate Commerce…among the several States”[13]) and flatly asserts that the conduct the federal law covers has a constitutionally sufficient nexus to interstate commerce.

Congress then leaves it to the courts to decide whether the federal legislature’s improper, unjustified exercises of its power to criminalize will be held unconstitutional. The lower federal courts almost uniformly refuse to do so, despite some recent precedents from the Supreme Court reaffirming the limits on federal power to criminalize.[14] Over the past century, Congress and the federal courts have relied on expansive and unsound readings of the Commerce Clause to justify the federal government’s broadening of the scope of its limited legislative authority to regulate more and more truly local conduct and also to expand the scope of federal criminal law.

Indeed, the number of federal crimes has increased almost exponentially. The sheer size of the federal criminal law is so great that no one has been able to produce an exact count of the thousands of statutory criminal offenses in federal law. The best scholarly estimates are that by 2008, the U.S. Code included at least 4,450 federal crimes[15] and that the Code of Federal Regulations includes tens of thousands of regulations that can be enforced with criminal penalties.[16] Many of these laws were passed by Congress based upon dubious or, at best, attenuated claims of constitutional authority and are beyond Congress’s enumerated powers.

FederalismThe current growth of federal criminal law also runs afoul of the fundamental tenets of federalism. Constitutional federalism is no mere theoretical nicety; like all limitations on the power of government, it is a vital safeguard for Americans’ essential rights and liberties. The preeminent Framer, James Madison, writing to explain and defend the Constitution in order to persuade Americans to ratify it, called constitutional federalism a “double security…[for] the rights of the people.”[17] The proliferation of vague and overbroad federal criminal laws that are unconnected to the federal government’s constitutionally defined powers and interests threatens this double security. It circumvents state sovereignty and undermines the authority of state and local law enforcement officials to combat common street crime.

Given that the federal government has no general or plenary police power, it is universally accepted that the power to punish crimes belongs primarily to the states. In fact, criminal justice is at the very core of the governmental powers and responsibilities that are predominately left to the states. The criminal justice burden borne by the 50 states dwarfs the burden undertaken by the federal government.[18] In 2003, state and local governments were responsible for 96 percent of those under correctional supervision—that is, in prison or jails, on probation or parole.[19] Similarly, in 2004, just 1 percent of the over 10 million arrests made nationwide were for federal offenses.[20]Members of Congress consistently demonstrate a willingness to increase the scope and power of the federal government at the expense of state sovereignty. Whether such practices are the result of a desire to appear “tough on crime” or of a collective mentality that societal harms can be solved only through criminalization, the result is the same: a labyrinthine collection of vague and overbroad statutes and regulations that sometimes duplicate and often conflict with state priorities for criminal law and law enforcement.

Separation of Powers and OvercriminalizationThe unchecked growth of the federal criminal code has led to a dangerous reallocation of power from elected representatives in Congress to unelected bureaucrats. For example, in recent decades, an increasing number of criminal regulations have been created by executive agencies composed of unelected political appointees and career bureaucrats. The purported authority for promulgating these regulations is often broad congressional language delegating authority to administrative agency officials to impose criminal sanctions.[21]

While such “delegation” may be politically expedient, it is also a severe abdication of Congress’s authority and leads to the unrestrained and unprincipled use of criminalization as a regulatory mechanism. Although the courts have permitted this sort of delegation in civil matters,[22] it is an especially pernicious trend when Congress’s decisions to delegate its authority to unelected bureaucrats in federal agencies involve criminal offenses and penalties that place Americans’ most basic freedoms and liberties at stake. A proper understanding of the federal legislature’s role would lead Congress to reject these sorts of delegations of its own authority even if the courts do not bind them to do so.

Delegating Power to Federal ProsecutorsImproper delegation is also evident in the manner in which overcriminalization provides federal prosecutors with unfettered control over broad swaths of criminal adjudication and legislative interpretation. The proliferation of vague and overly broad laws has given federal prosecutors the ability to stack criminal charges against defendants in a way that diminishes the likelihood of a criminal trial and increases the probability of either a guilty plea or a jury verdict.

Harvard law professor Bill Stuntz has described charge stacking as the ability “to charge a large number of overlapping crimes for a single course of conduct.”[23] The potential for injustice is heightened when each of the crimes is vague and overly broad. However:

Even if each of these offenses is narrowly defined to cover only serious misconduct, combining crimes enables prosecutors to get convictions in cases where there may be no misconduct at all. When deciding whether to plead guilty, any rational defendant (more to the point, any rational defense lawyer) takes account of the sentence the defendant may receive if he goes to trial and loses.… By stacking enough charges, prosecutors can jack up the threat value of trial and thereby induce a guilty plea, even if the government’s case is weak.[24]

In the federal system, where over 95 percent of defendants already plead guilty, overcriminalization thus gives prosecutors vast latitude to secure guilty verdicts. In the interpretive context, the proliferation of vague and overbroad criminal laws has given federal prosecutors in the U.S. Attorneys’ offices and Department of Justice the ability to apply vague, overly broad criminal laws to a vast array of conduct. The prosecutor essentially becomes a lawmaker, providing meaning and context to an otherwise open-ended statute or regulation.[25] Such a situation runs afoul of the proper assignment of federal power under the Constitution.

Delegating Power to the JudiciaryThe unprincipled growth of federal criminal law has also led to the inappropriate delegation of legislative authority to the judicial branch. Judges often must take it upon themselves to create meaning from vague, unbounded criminal offenses such as the “honest services” fraud statute. When “interpreting” the large number of imprecise and unclear mens rea (criminal-intent) requirements in statutory and regulatory criminal offenses, for examplejudges are essentially co-opted into rewriting the laws and “finding” meaning where there is none.

There are judicially created safeguards that federal courts could (and should) apply to grant the benefit of the doubt to a person accused of a vague, ambiguous, or overly broad criminal law. These safeguards include the constitutional void-for-vagueness doctrine that the Supreme Court used to narrow the “honest services” fraud statute as well as the common-law rule of lenity.

Regrettably, overcriminalization often induces the courts to assume instead the responsibilities of the legislature. The Supreme Court pinpointed the hazards arising from this sort of separation-of-powers violation well over a century ago:

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.[26]In 1784, Thomas Jefferson warned that “concentrating” or combining the powers of the legislative, executive, and judicial branches of government “in the same hands is precisely the definition of despotic government.”[27] James Madison echoed this same conclusion a few years later.[28]

It is undoubtedly convenient and expedient for Congress to create imprecise, hastily drafted criminal laws and allow prosecutors and judges to interpret them as they will.[29] The same can be said about authorizing unelected bureaucrats in federal agencies to make the crucial criminal-law decisions that will affect Americans’ most fundamental rights and liberties. However, the fundamental duty for full deliberation over and precise crafting of every criminal law belongs to Congress. When Congress carries out this duty in a haphazard, imprecise manner—or expressly delegates it away to federal agencies—both individual Americans and the nation’s system of constitutional government are harmed.

ConclusionPerhaps the central question that the Framers of the Constitution and Bill of Rights debated—a question to which they gave painstaking consideration—was how best to protect individuals from unfettered government power. They were well acquainted with abuses of the criminal law and criminal process and so endeavored to place in America’s founding documents significant safeguards against unjust criminal prosecution, conviction, and punishment. In fact, the Framers understood so well the nature of criminal law and the natural tendency of government to abuse it that two centuries later, the most important procedural (as opposed to substantive) protections against unjust criminal punishment are derived directly or indirectly from the Constitution itself, notably the Fourth, Fifth, Sixth, and Eighth Amendments.

Despite these protections, the wholesale expansion of federal criminal law—in both the number of offenses and the subject matter they cover—has become a major threat to American civil liberties. When laws are vague, are overbroad, or lack adequate mens rea requirements, the procedural protections of the Bill of Rights are inadequate to protect individual Americans from unjust criminal prosecution and punishment. This inadequacy is evidenced by the terrible toll that overcriminalization has taken on the lives of individuals such as Georgia Thompson,[30] as well as the manner in which the expansion of federal criminal law has eaten away at the wide range of structural constitutional protections put in place by the Framers.

Congress’s overcriminalization expands the power of the federal government beyond its constitutional limits and disrupts constitutional federalism’s proper balance of power between the federal and state governments. The proliferation of vague, overly broad federal criminal laws results in separation-of-powers violations and encroaches upon the rights of innocent Americans. The destructive constitutional implications of overcriminalization are one more compelling reason for Congress to rein in the unbridled and unprincipled growth of federal criminal statutes and regulations.

—Brian W. Walsh is Senior Legal Research Fellow and Benjamin P. Keane is a Visiting Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.

Ever since the Supreme Court's misguided 2005 decision in Kelo v. City of New London, states have been passing their own laws to protect property owners from abuses of eminent domain. One of those laws was enforced this month in California, and the decision is a major victory for property rights.

In Community Youth Athletic Center v. National City, San Diego Superior Court Judge Steven R. Denton ruled that National City, California's designated blight zone is "invalid and unenforceable." The decision means the city will not be allowed to seize property belonging to CYAC, a local boxing gym that sponsors programs for at-risk kids.

The tale began in 2005 when National City gave private developer Jim Beauchamp the right to build a condo project on the gym's land. The Community Development Commission threatened that if the CYAC were "unable to come to terms with the developer on the sale of your property," then "the developer may request that the CDC proceed directly with the acquisition of your property."

In 2007, the city extended an ordinance designating some 692 properties, including the gym, as "blighted" and therefore subject to eminent domain for 10 years. Facing a slew of bad publicity, National City Mayor Ron Morrison downplayed any threat to the gym itself, but the eminent domain threat hovered around developers' plans for surrounding neighborhood properties, including churches, schools and small businesses.

This was exactly the scenario California legislators had in mind when they passed a post-Kelo law in 2006 requiring the government to show "specific and quantifiable" evidence of blight and that the blight couldn't be improved without eminent domain. The court's ruling chastised the city for failing to document exactly why the targeted properties should qualify as "blighted." "Lack of parking" doesn't qualify, Judge Denton noted dryly.

California has been a leading abuser of eminent domain and the case should resonate with California Republican lawmakers, who have been in the odd position of rejecting an effort by Governor Jerry Brown to jettison the state's some 400 redevelopment agencies because they opposed his overall budget. Getting rid of the redevelopment agencies would save the state roughly $1.7 billion a year amid a roughly $25 billion budget deficit.

According to the Institute for Justice, which represented CYAC, nearly 200 California development projects have used or threatened to use eminent domain laws for private developments, often on the grounds of economic improvement. The victims of the law are often minorities and economically disadvantaged residents, who are unable to protect their businesses and neighborhoods from politically connected developers.

Property takings rarely produce the economic growth their developers promise, and any gentrification of a neighborhood is little consolation to those whose homes and businesses are seized. We're glad average citizens are fighting for their property rights, and we hope GOP lawmakers take Governor Brown up on the offer to send redevelopment agencies to the knackery.

Having just finished a course on the New Deal for the Mises Academy, I'm now offering one on state nullification, the subject of my most recent book. I thought my New Deal course covered issues and sources left out of the typical classroom, but in that respect this course has that one beat.

Nullification is the Jeffersonian idea that the states of the American Union must judge the constitutionality of the acts of their agent, the federal government, since no impartial arbiter between them exists. When the federal government exercises a particularly dangerous power not delegated to it, the states must refuse to allow its enforcement within their borders.

I can hear people saying that such a response doesn't go nearly far enough. No argument there. The trouble with nullification is not that it is too "extreme," as the enforcers of opinion would say, but that it is too timid. But it gets people thinking in terms of resistance, which has to be a good thing, and it defies the unexamined premise of the entire political spectrum, according to which society must be organized with a single, irresistible power center issuing infallible commands from the top.

That's at least a pretty good start.

The course, Nullification: A Jeffersonian Bulwark Against Tyranny, will cover the basics, to be sure, and after the first week everyone will be well-grounded in the relevant issues. But then I want to dig into the primary sources. I want to examine the long-forgotten debates on this subject in detail. In particular, we'll study the exchanges between Daniel Webster and Robert Hayne, Andrew Jackson and Littleton Waller Tazewell, and Joseph Story and Abel Upshur.

Hardly anyone, including graduate students in American history, has actually read these texts as opposed to just knowing of their existence — and if my own experience at Columbia University is any indication, even that is more than some grad students know.

The various commissars who have taken it upon themselves to ensure that no one strays from officially approved opinion — or to appropriately scold anyone who in fact does so — have become apoplectic at the return of nullification. I confess to taking mischievous delight in this. They are accustomed to setting the terms of debate. They are not used to seeing people promote ideas of their own.

And the commissars have not read these sources, either. But you will. You will know the arguments of both sides inside and out.

You will also enjoy the discussions that ensue at the end of each lecture. You can sign off whenever you like, of course, but during the course I just completed on the New Deal I stayed around for an hour and a half to two extra hours answering questions and directing discussion, and then shooting the breeze about anything people wanted to discuss. We had a great time. As always, the lectures are available for viewing, along with a full transcript of the chat box, for people who cannot watch them live.

I understand the impatience that many of us feel regarding nullification, particularly the complaints that

the Constitution per se isn't what matters anyway; what matters is freedom; andthe states are no angels, either.These criticisms are by no means misplaced. But nullification remains a useful quiver in the liberty arsenal all the same. As I've said, it gets people thinking in healthy ways. And it can be employed for good purposes, as when the Principles of '98 (as the ideas culminating in nullification came to be known) were cited on behalf of free speech and free trade, and against unconstitutional searches and seizures, military conscription, and fugitive-slave laws. In our own day, Janet Napolitano said the reason the Real ID Act failed was that the states refused to cooperate in its enforcement.

And the states are indeed rotten, too — which is why we may as well put them to some good use by pursuing nullification. Liberty is more likely to have room to flourish in a world of many competing jurisdictions rather than under a single, irresistible jurisdiction.

In short, this course will introduce you to a chapter of American history that has fallen down the memory hole but which is much too interesting and valuable to leave down there. In the process of pulling it out, you'll acquire a much deeper understanding of American history.

I hope you'll join me.

Here is the Mises Institute's Jeffrey Tucker interviewing me on the subject: [see this link for the video interview]

Crafty: "This seems to me to be a very pertinent and troubling question."

Doug: "...given the equal protection clause of the 14th amendment, why isn't a waiver for one - automatically a waiver for all?

The Equal Protection Clause... "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"... As written it applied only to state governments, but it has since been interpreted to apply to the Federal Government of the United States as well.-----I would like a waiver from the 16th amendment (federal power to tax income) if waivers are available and equal protection is subordinated.

DougMacG, I am not exactly sure what you are asking me. Having looked at the HCP thread, I can certainly see why people would question Pelosi's role in the passage of the law. Are you asking me about the equal protection clause? Its applicabilty to individuals? States? Companies? Or if you have to pay taxes?

Crafty: "This seems to me to be a very pertinent and troubling question."

Doug: "...given the equal protection clause of the 14th amendment, why isn't a waiver for one - automatically a waiver for all?

The Equal Protection Clause... "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"... As written it applied only to state governments, but it has since been interpreted to apply to the Federal Government of the United States as well.-----I would like a waiver from the 16th amendment (federal power to tax income) if waivers are available and equal protection is subordinated.

Our contributor's child, born in Jerusalem to American parents, was told that his passport must list "Jerusalem" -- without a country -- as the place of his birth. Why? Because America doesn't recognize the Holy City as the Jewish State's capital. Dr. Ari Zivotofsky, and his wife Naomi, found that obscene, particularly because a law of Congress agrees with them. For years they waded through a maddening bureaucracy. Their case, which could potentially have a serious impact on any future Muddle East peace negotiations, was just accepted by the High Court. It's being framed as a dispute concerning the separation of powers within the US government

The US Supreme Court agreed this week to take up a case that could greatly complicate the delicate Middle East peace process in a legal challenge to the US State Department's policy of neutrality over the disputed status of Jerusalem.

The case arises out of a clash between Congress and the White House over which branch of government is empowered to decide how best to conduct sensitive issues of diplomacy overseas.

In addition to fundamental questions concerning the separation of powers within the US government, the case involves an example of the president issuing a signing statement announcing his intent not to enforce a portion of a law passed by Congress.

At the center of the case is the thorny question of how to record the birth of a child to American citizens when the happy event takes place in Jerusalem.

When a child is born to American citizens in Jerusalem, US government protocol is to list the place of birth as simply "Jerusalem."

It is done for diplomatic reasons, to avoid having to take sides between competing Arab and Israeli claims to the holy city.

Congress, on the other hand, has eschewed such diplomatic niceties. In September 2002, it passed a law directing the State Department — whenever requested — to record a birth in Jerusalem as having taken place in "Israel." The congressional action sparked protests and condemnation in the Middle East among those who interpreted the new law as a shift from a long-held US position.

The status of the city of Jerusalem is one of the most difficult and sensitive issues in the quest for peace between Arabs and Israelis.

Palestinians maintain that Jerusalem is an indivisible part of Arab lands they recognize as Palestine. Israelis counter that Jerusalem is not only an Israeli city, but Israel's capital.

The US diplomatic corps, seeking to maintain credibility as a mediator in the peace process, has remained neutral on the issue.

Into this delicate diplomatic dance came the infant child of Ari and Naomi Zivotofsky. The child, identified in court papers as MBZ, was born Oct. 17, 2002, in Jerusalem. When the boy's mother applied for documents verifying the birth abroad of a US citizen, she asked that the certificate reflect that the birth occurred in "Jerusalem, Israel."

State Department officials pointed out that, for political and diplomatic reasons, US policy is to record the place of birth as simply "Jerusalem."

The parents filed a lawsuit asking a federal judge to order the US government to list the birthplace of their son on official documents as "Jerusalem, Israel." They noted that in September 2002, a month before the birth, Congress had passed the law instructing US officials to list the place of birth as Israel.

It is that dispute that the Supreme Court has agreed to decide. At issue is whether US officials must comply with the congressional action or, instead, enforce the diplomatic protocol favored for the past 60 years by all presidents.

The child, Menachem Binyamin Zivotofsky, is now eight years old.

The law in question is a provision of the Foreign Relations Authorization Act for fiscal year 2003. The relevant portion of the law is entitled "United States Policy with Respect to Jerusalem as the Capital of Israel."

President Bush signed the Authorization Act into law but simultaneously issued a signing statement to emphasize that US policy regarding the status of Jerusalem had not changed. Bush wrote that the congressional mandate would "impermissibly interfere with the president's constitutional authority to formulate the position of the United States, speak for the nation in international affairs, and determine the terms on which recognition is given to foreign states."

In the federal court case, government lawyers argued that "if 'Israel' were to be recorded as the place of birth of a person born in Jerusalem, such 'unilateral action' by the United States on one of the most sensitive issues in the negotiations between Israelis and Palestinians would critically compromise the United States' ability to help further the Middle East peace process."

Supporters of the congressional action argue that once Congress passes a law it is up to the executive branch to faithfully uphold and enforce it. They say Congress has the authority to undertake a policymaking role in foreign affairs.

A federal judge threw out the Zivotofskys' case, ruling that the issue is a political question related to an aspect of foreign affairs that is constitutionally assigned to the executive branch of government. An appeals court panel affirmed the decision.

In agreeing to take up the case, the high court asked the parties to also address whether the 2002 congressional mandate "impermissibily infringes the president's power to recognize foreign sovereigns."

The case, MBZ v. Clinton, will likely be scheduled for oral argument sometime in the court's next term, which begins in early October.

U.S. Supreme Court Justice Anthony Kennedy's majority opinion forcing California to cut its inmate population sharpened his divide with conservative colleagues over what constitutes cruel and unusual punishment.

Backed by the court's four liberals, Justice Kennedy has delivered a series of opinions since 2005 that have abolished the death penalty for minors and for adult criminals who left their victims alive. A Kennedy ruling also required that juvenile offenders be given an opportunity to seek parole unless their crimes included murder.

And on Monday, the Reagan appointee wrote the decision prohibiting California from housing inmates in prisons incapable of providing with them essential medical care—even if that requires the release of felons before they complete their sentences.

The prisoner-rights decisions mark a striking contrast to the court's trajectory since the mid-2000s, when President George W. Bush elevated Chief Justice John Roberts and Justice Samuel Alito.

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Associated Press

Justice Anthony Kennedy.Together with them and veteran justices Antonin Scalia and Clarence Thomas, Justice Kennedy has formed a majority to uphold gun rights, permit unfettered corporate and union political spending and undo certain limits on governmental support of religion.

But when it comes to the Constitution's Eighth Amendment, which prohibits "cruel and unusual punishments," Justice Kennedy has championed a doctrine that echoes the liberal Warren Court of the 1950s and '60s: that the prohibition be applied, as Chief Justice Earl Warren wrote in 1958, according to "the evolving standards of decency that mark the progress of a maturing society."

“To incarcerate, society takes from prisoners the means to provide for their own needs. … A prison's failure to provide sustenance for inmates may actually produce physical torture or a lingering death.” Justice Anthony Kennedy

The Warren opinion referred to English precedents dating to the Magna Carta and said the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man."

More Eighth Amendment cases could reach the high court in coming years. While the court approved a three-drug recipe for lethal injections in 2008, some suppliers of the narcotics have dropped out of the business and states have substituted other chemicals.

That could invite challenges from condemned prisoners alleging that untested formulas would cause unconstitutional levels of pain.

And new cases may test the implications of Justice Kennedy's earlier opinions limiting punishments for underage offenders. This month, the Wisconsin Supreme Court found it constitutional to sentence a 14-year-old to life imprisonment with no chance of parole.

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Associated Press

Justice Antonin Scalia.Justice Kennedy has looked to social science and modern practices in his earlier decisions outlawing the harshest punishments. "By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons," he wrote in the 2005 opinion Roper v. Simmons, abolishing the death penalty for juveniles.

Such positions have put him at odds with Justice Scalia, who misses no opportunity to stress his contempt for Chief Justice Warren's "evolving standards" formula.

"I detest that phrase," Justice Scalia said at a law-school forum in 2005, "because I'm afraid that societies don't always mature. Sometimes they rot." In his Monday dissent—joined only by Justice Thomas—Justice Scalia wrote that Justice Kennedy's opinion was unprecedented, even under "our judge-empowering 'evolving-standards of decency' jurisprudence."

“t would absurd to suggest—that every single one of those prisoners has personally experienced torture or a lingering death.” Justice Antonin Scalia

Justice Scalia says he construes constitutional provisions according to their original meaning. Dissenting from Justice Kennedy's Roper opinion, Justice Scalia said "cruel and unusual" originally meant that judges could only impose punishments authorized by the legislature, rather than fashion their own.

On Monday, Chief Justice Roberts and Justice Alito filed a separate dissent that avoided mention of the "evolving standards" or "dignity" concepts.

Justice Kennedy's opinion included an array of anecdotes regarding prison conditions in California, where "as many as 54 prisoners may share a single toilet" and a psychiatric patient was "held in a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic."

Justice Scalia replied that the Constitution doesn't authorize judges to prescribe "rules for the 'decent' running of schools, prisons and other government institutions." He offered his own vivid image, saying that many of those released wouldn't be ill inmates but "fine physical specimens who have developed intimidating muscles pumping iron in the prison gym."

Abstract: Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused – with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist theory has evolved – the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice.

The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one. On one interpretation, living constitutionalism and originalism are (mostly) compatible: the constitution lives inside the “construction zone,” the boundaries of which are marked by the original meaning of the text. On another interpretation, living constitutionalism is incompatible with originalism: living constitutional doctrine and practices can override even original meaning of the text, even when that meaning is clear.

Besides being a paleo-conservative I am now a contemporary-originalist. Reading the pdf I am more informed and more confused than ever about what that means.

"originalists continue to disagree about the role of “original intentions” and “original public meaning"

Original meaning to me is something that laymen are capable of understanding, not just the Court's best trained and closest observers.-----I also believe the constitution is a living, breathing, growing, changing, evolving document - and it does that seldom and slowly through the AMENDMENT process, exactly as the framers designed it, as the ratifiers ratified it and as the public understood it to mean.

(From liberalism thread, BD post)Stossel: "The Founders knew [where government should end and personal responsibility begins]. Government should end at keeping the peace, enforcing contracts, and property rights." I wonder if Stossel has read Article I, section 8 and the vesting clause of Article II.

Okay, I'll bite. Where does it say the federal government shall run all aspects of private housing? I've read it twice now and still can't find it.

The closest I could come is: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections..." with Fannie Mae being the militia and private contracts being the insurrection. Am I close?-----------To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.------------"The executive Power shall be vested in a President of the United States of America...."

Now Doug, if you can find where I said that the federal government shall run all aspects of private housing, then we can discuss this. I didn't see that mentioned in the Stossel piece either. What was it that was said last week about apples meeting kumquats?

But make sure you tell me exactly and directly how the following powers "end at keeping the peace, enforcing contracts, and property rights."

To establish Post Offices and Post Roads To establish an uniform Rule of NaturalizationTo promote the Progress of Science and useful ArtsTo constitute Tribunals inferior to the supreme Court;To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;To provide and maintain a Navy;To make Rules for the Government and Regulation of the land and naval Forces;disciplining, the MilitiaTo make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof

(From liberalism thread, BD post)Stossel: "The Founders knew [where government should end and personal responsibility begins]. Government should end at keeping the peace, enforcing contracts, and property rights." I wonder if Stossel has read Article I, section 8 and the vesting clause of Article II.

Okay, I'll bite. Where does it say the federal government shall run all aspects of private housing? I've read it twice now and still can't find it.

The closest I could come is: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections..." with Fannie Mae being the militia and private contracts being the insurrection. Am I close?-----------To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.------------"The executive Power shall be vested in a President of the United States of America...."

"Now Doug, if you can find where I said that the federal government shall run all aspects of private housing, then we can discuss this."

I hope I didn't say you said that. You express well and the written record provided by our generous host is always available. Let me backtrack and see if I can explain my concerns more accurately.

Stossel said, as you quoted: "end at keeping the peace, enforcing contracts, and property rights."

Sometimes I say I am pro-government - in the sense that government should defend our shores and keep the roads and libraries open. But I know it's more than that.

Here you are being the literalist, which is good in constitutional law, and sometimes you pull our leg a little, which is also good in the human spirit and sometimes I can follow you and sometimes it flies over my head. In this case I don't believe and I don't believe that you believe that Stossel thinks the constitution authorizing federal government powers is 8 words long. I took that as a figure of speech meaning that government has gone way beyond where it should have gone or where it was authorized to go.

The exercise of finding, reading and posting the passages you referenced was good for me. It didn't say what Stossel said (an admission of my guilt and my answer to your direct question), it didn't say exactly what I thought it said, and it certainly doesn't authorize (IMO) all the crap that is coming our of Washington today or over the last several decades, unless the reader has quite an imagination.

An example of what it doesn't authorize is the housing mess that I think was the first card to fall bringing down the economy this most time. I invite you to address that...

Of the roughly $3.8 trillion a year that we are spending right now, of which I think over 60% of it is the federal government writing taxpayer based checks to individuals, how much of that do you think is directly authorized in those sections or envisioned by the framers?

Specifically, let's figure out what authorized the federal takeover of housing, the issue of the most recent collapse. (I would be happy to expand the question to health care or auto manufacturing or a host of other things.) What authorized the federal government to take over the mortgage business, 90% then and nearly 100% now. It isn't spelled out; was it envisioned or intended?

I think it was Freki who pointed out something that a lot of people are missing. Yes, we have read into the constitution through the interstate commerce clause the power to regulate almost anything including something that is grown by yourself and consumed by yourself on your own private property and sold to no one. But the power to regulate commerce is not the power to participate in the market, unless words have no meaning.

The most telling clause I re-discovered about how large and intrusive a federal government the framers envisioned IMO was where they wrote that the congress needs to convene at least once each year, on the first Monday of December, if they haven't already made other plans to get together. How does that compare with what we do today?

On a more positive note, if we can all agree that the constitution as written or as interpreted does NOT limit the size, scope or intrusiveness of government in any meaningful way (I know no one else said that), maybe we can all work together and amend it until it does.

"Here you are being the literalist, which is good in constitutional law, and sometimes you pull our leg a little, which is also good in the human spirit and sometimes I can follow you and sometimes it flies over my head. In this case I don't believe and I don't believe that you believe that Stossel thinks the constitution authorizing federal government powers is 8 words long. I took that as a figure of speech meaning that government has gone way beyond where it should have gone or where it was authorized to go."

Here I took him literally, as he was invoking the Framers when he made the argument. I could be wrong, of course. My overall point was that there are expansive powers, not just a list of powers, provided to Congress and the President in the Constitution. I should note that I believe that these powers have been expanded too much. I also believe that Congress has largely abdicated is role in the separations of power and checks and balances.

"The most telling clause I re-discovered about how large and intrusive a federal government the framers envisioned IMO was where they wrote that the congress needs to convene at least once each year, on the first Monday of December, if they haven't already made other plans to get together. How does that compare with what we do today?"

Agreed, although much of the "extra" activity is posturing, reelection activities, and Sunday morning talk shows (and potentially tweeting pics of your junk to college girls).

P.S. You've not addressed the vesting clause in Article II, in my mind an even more important issue that Congress.

First, I see I have not answered all questions asked of me, probably because I don't know the answer...

This is a right-wing conservative editorial (Washington Times) covering new oral arguments on healthcare. I don't know if this adds anything new to the discussion we've already had. Just painfully working its way through the system. Meanwhile the country has no idea what the law of the land is as different courts have already made opposite conclusions. I suppose the Supreme Court has more pressing matters on their mind and their docket.

The White House defense of Obamacare hinges on the claim that Congress essentially has unlimited power to force Americans to spend their personal money on a cause of the government’s choosing. Oral arguments before the 6th Circuit Court of Appeals on Wednesday made this all the more clear.

Administration lawyers argued that uninsured individuals can be compelled to buy health care coverage under the Commerce Clause of the Constitution. If that’s so, what else could Congress compel people to do? As Judge James L. Graham asked acting Solicitor General Neal Katyal, “Where ultimately is the limit on congressional power?” The question sounds rhetorical but is not.

The judicial high-water mark for advocates of federal management of personal economic activity was the 1942 case of Wickard v. Filburn. Roscoe Filburn was an Ohio farmer fined for the crime of growing too much wheat. Mr. Filburn insisted the New Deal-era crop quotas did not apply to his particular circumstances because he was growing feed for his chickens, not for sale. The Supreme Court declared that the Commerce Clause applied to non-commerce because “control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply.” The notion that a farmer should be free to grow grain on private property for personal use was not compelling, given the court’s belief in the overwhelming benefits of a centrally managed marketplace. Since “as the result of the wheat programs” Mr. Filburn was able to sell his other crops at a price “far above any world price based on the natural reaction of supply and demand,” he should be thanking the government for usurping his freedom, not suing it. To the activist liberals on the high bench, farmer Filburn was simply an ingrate.

The pernicious logic of Wickard v. Filburn has been used to justify other examples of stretching the Commerce Clause, such as the assertion of federal jurisdiction over homegrown medical marijuana. In the 2005 case Gonzales v. Raich, the court reaffirmed that “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

The Obama administration is taking this a step further. The White House claims that the burden placed on the health care system by the uninsured justifies coercing them into action. The “class of activity” that undermines the regulation of the “interstate market” in health care is inactivity. Since there is no interstate commerce to regulate, the government mandates it.

That’s why Obamacare isn’t just a threat to the private health care system. It strikes at the very foundation of our nation. In our earliest days, Chief Justice John Marshall warned that if Congress can exercise powers that are in practice unlimited, then “written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.” It is “a proposition too plain to be contested” that the Constitution cannot be used to justify an act that destroys the very limits on which constitutional government is founded, he wrote. The courts should move expeditiously to throw out the president’s unconstitutional power grab.

Some, including constitutional attorney Mark Levin consider the War Powers act unconstitutional. Listening to Mark Levin discuss this issue he points out every President has acted without the permission of Congress and for national security reasons this was the way the founders wanted it. If congress later decided the military action was wrong they could simply "defund" it. In his opinion Ron Paul doesn't have the faintest clue what he is talking about. I agree:

It Growing GOP Opposition to Presidential War Powers? →Thomas Woods vs. Mark Levin On Presidential War PowersPosted on March 27, 2011 by Chad

Mark Levin has apparently jumped into the fray over presidential war powers. It’s been a hot topic of debate lately, thanks to Obama’s involvement in Libya. As you may have guessed, Levin favors presidential power to authorize military action- without consulting congress. To be fair, Levin is not alone in his view. Thomas Woods takes apart Levin’s argument in a recent article. You can read the whole thing here. It’s an excellent read. One particular part stands out where he quotes Levin as saying:

The constitutional convention was “never going to give war-making power to Congress.”

“You think my view is odd? Well that’s funny, because every single president of the United States has embraced this view—very damn one of em’, from Reagan to Obama.”

Woods’ response is great:

Yes, it is simply unthinkable that the two political parties could both defy the Constitution in the same way for 30 whole years. I mean, we have no precedent for such a thing elsewhere in government, where both parties have scrupulously observed constitutional limits for decades and decades.

Some of you are fans of Mark Levin I’m sure. I have nothing against him personally, but am concerned by what he represents. He’s part of a growing number of political pundits on both sides of the aisle who have spent time working in Washington D.C.

Mark Levin is a lawyer who once worked in Washington in a president’s administration. Having spent a significant portion of his career working under a very popular president, can we really expect Levin (and the many others like him in BOTH PARTIES) to distrust presidential authority?